Sri Nanjundegowda Vs Sri C Basavanna

SRI. C. BASAVANNA AGED ABOUT 58 YEARS, S/O LATE CHANNEGOWDA, R/AT MAHADEVAPURA VILLAGE, MANANDAVADI ROAD, KASABA HOBLI, MYSURU TALUK AND DISTRICT - 570 023.

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SRI BASAVEGOWDA NOW DEAD

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SMT. MARAMMA AGED ABOUT 80 YEARS, W/O LATE BASAVEGOWDA,

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2 - NC: 2025:KHC:32714 RSA No. 853 of 2022

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HC-KAR

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SRI MAHADEVA

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AGED ABOUT 69 YEARS, S/O LATE BASAVEGOWDA,

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LAKSHMI

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AGED ABOUT 71 YEARS, D/O LATE BASAVEGOWDA,

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RESPONDENTS NO.2 TO 4 ARE R/AT MASAGAPURA VILLAGE, KASABA HOBLI, CHAMARAJANAGARA TALUK AND DISTRICT - 571 313.

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THE SECRETARY MADAPURA GRAM PANCHAYATH, MADAPURA, CHAMARAJANAGARA TALUK AND DISTRICT - 571 313.

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…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.03.2022 PASSED IN RA.NO.2/2018 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, CHAMARAJANAGARA. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.11.2017 PASSED IN O.S.NO.303/2008 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, CHAMARAJANAGAR.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri.P.Nataraju, learned counsel for the

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appellants.

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Defendants are in this second appeal challenging the judgment of permanent injunction passed in O.S.No.303/2008 which was confirmed in RA No.02/2018 in respect of the property which is a vacant site property measuring East to West 45 feet, North to South 39 feet bearing assessment No.110/1 of Masagapura village, Madapura Grama Panchayath, Chamarajanagar Taluk having boundaries as under (hereinafter referred to as suit schedule property):

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East by - Road West by - the defendant No.1 Basavegowda’s vacant site South by - Madegowda and sons vacant site property (Assessment No.105/1) North by - Road

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HC-KAR

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Facts which are utmost necessary for disposal of the present appeal are as under:

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3.1. Plaintiff filed a suit for injunction contending

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that one Mallegowda sold the vacant site property measuring East to West 22½ feet and North to South 39 feet through registered sale deed dated 09.11.1956 in favour of father of the plaintiff. Mother of the plaintiff namely Siddamma purchased a property towards the western side of the property from her husband measuring East to West 22 ½ feet North to South 39 feet though registered sale deed dated 05.04.1958. Thus, total measurement of the two properties put to together would be East to West 45 feet and North to South 39 feet.

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3.2. These properties are together considered as suit

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property and from the date of purchase, the plaintiff and his predecessors-in-title are in peaceful possession and enjoyment of the suit property. Channegowda and Siddamma had three sons namely Shivanna, Nagegowda and plaintiff.

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HC-KAR

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3.3. It is the case of the plaintiff that suit property at a family partition which got allotted to his share through paluparikathu dated 02.09.2004 which is an unregistered document. Thereafter, plaintiff got revenue entries transferred on to his name and was paying the tax to the local authorities and as such, he continued to enjoy the suit property.

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3.4. It is further contended that during the life time

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of Siddamma, she had obtained building license to put up construction in the suit property in the year 1985 but she

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could not commence the construction on account of financial constraints.

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3.5. Subsequently, elder son namely Shivanna had obtained building license on 23.09.1992 to put up the construction in the property but at that juncture, he could only put up the basement construction and could not complete the construction.

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HC-KAR

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3.6. Subsequently, when the property was allotted

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to the plaintiff, he tried to put up the construction based on the license already obtained. At that juncture, defendants started interfering with the peaceful possession and enjoyment of the suit property which necessitated the plaintiff to file a suit for injunction.

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Upon receipt of suit summons, defendant Nos.1 to 3 appeared through the Advocate and filed detailed written statement. Defendant No.4 remained absent and he was placed ex-parte .

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In the written statement, defendants denied all the plaint averments. When the case was pending, defendant No.1 died and his legal representatives were brought on record. Defendant Nos.2 and 3 are also the children of deceased Basavegowda.

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In the written statement filed by defendant

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Nos.1 to 3, they have denied the plaint averments and

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HC-KAR

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necessary issues were raised and after due trial, suit of the plaintiff came to be decreed.

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Being aggrieved by the same, an appeal came

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to be filed before the First Appellate Court by defendant Nos.2 and 3- Nanjundegowda and B.Mariswamy.

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Learned Judge in the First Appellate Court after

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securing the records, heard the arguments of the parties in detail and reappreciated the legal and factual aspects of the matter and dismissed the appeal filed by defendant Nos.2 and 3.

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Being further aggrieved by the same, defendant Nos.2 and 3 are before this Court in this appeal on the following grounds and substantial questions of law:

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GROUNDS

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“The Judgement and Decree passed by the Trial Court and the First Appellate Court are contrary to law, facts and evidence on record.

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NC: 2025:KHC:32714 RSA No. 853 of 2022

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HC-KAR

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The Trial Court and the First Appellate Court grossly erred in giving much of weight to the in consistent oral and documentary evidence produced by the 1st respondent ignoring the cogent and consistent oral and documentary evidence produced by the appellants.

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The Trial Court and the First Appellate Court grossly erred in passing the impugned judgement and decree though the 1st respondent has failed to prove his lawful possession and enjoyment over the suit schedule property by producing the corroborative oral and documentary evidence.

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The Trial Court and the First Appellate Court failed to properly consider the fact that the 1st respondent has failed to prove the boundaries to the suit schedule property and even in Ex.P22 also boundaries to the suit schedule property is not mentioned.

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The Trial Court and the First Appellate Court grossly erred in drawing adverse inference against the appellants relying upon the stay admission of Dw.1 without ascertaining the correct boundaries to the suit schedule property.

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HC-KAR

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The Trial Court and the First Appellate Court failed to properly consider the admission Pw.1 to Pw.3 in the cross examination and pleadings, oral and documentary evidence and the measurement and boundaries furnished by the appellants.

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The judgement and decree passed by the Trial Court and the First Appellate Court are only on assumptions and presumptions and not on the basis of proper appreciation of evidence and documents on record in its proper perspective.

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The First Appellate Court grossly erred in not formulating the point for consideration regarding the application for amendment of written statement filed by the appellants.

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The First Appellate Court grossly erred in not passing the speaking order on the application for amendment filed by the appellants.”

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SUBSTANTIAL QUESTIONS OF LAW

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“1. Whether the findings recorded by the courts below on Issue No.1 and 2 is just and proper?

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2. Whether the Trial Court and the First Appellate Court committed an error in passing the impugned

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HC-KAR

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judgement and decree though the 1st respondent has failed to prove the boundaries to the suit schedule property?

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3. Whether the First Appellate Court committed an error in law in not considering the application filed by the appellants for amendment of written statement?”

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Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum contended that Trial Court ought not to have placed reliance on the unregistered paluparikathu in the family of the plaintiff marked at Ex.P.22 which did not confer any right, title and interest and based on such paluparikathu, they are trying to encroach upon the property of the defendants.

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Therefore, decreeing the suit by the learned Trial Judge mechanically and confirmed by the First Appellate Court has resulted in miscarriage of justice and sought for admitting the appeal for further consideration.

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HC-KAR

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In the light of the arguments addressed on behalf of the appellants, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that the property earlier belonged to the parents of the plaintiff by virtue of two registered sale deeds.

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During the life time of the mother - Siddamma,

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she had obtained a license from the local authorities to put up the construction but on account of financial constraints, she could not commence the construction. However, brother of the plaintiff by name Shivanna based on the licenses issued by the competent authorties, put up the construction up to basement level which is visible in the photograph of the suit property marked as exhibit.

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At the time of paluparikathu, within the family of the plaintiff, suit property which has got construction up

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HC-KAR

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to basement level has fallen to the share of the plaintiff as

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per Ex.P.22.

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These appellants/defendant Nos.2 and 3 did not

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choose to object for the grant of license nor when the basement was put up by Shivanna.

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Therefore, they cannot now turn around and

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then contend that by virtue of paluparikathu, the plaintiff has encroached upon the defendants’ property. No such material evidence is also placed on record by defendant Nos.2 and 3 to establish that in the suit property, defendant Nos.2 and 3 are having independent rights.

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Taking note of these aspects of the matter and also taking note of the fact that there is already a construction up to basement level in the suit property and the same is being enjoyed by the parents of the plaintiff and subsequently, as per Ex.P.22, it is the plaintiff who is in the lawful possession of the property, decreeing the suit for the permanent injunction by the Trial Court confirmed

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